Case Information

*1 The Attorney General of Texas 28, 1978 December

JOHN L. HILL

Attorney General Opinion No. II- 1314

Chairman, Higher Education Committee Re: Validity of State Roard of

House of Representatives State Capitol Education rules for the accredi- tation of school districts. Austin, Texas 78711 Dear Representative Olson:

You request our opinion concerning the validity of the rules adopted in 1977 by the State Board of Education to govern the process of accrediting school districts in the state.

‘Ihe Legislature has specified that a Texas school district must be accredited by the Central Education Agency in order to receive financial support from the Foundation School Fund. Educ. Code SS 16.051, 16.053. The State Board of Education has the duty to establish rules and regulations for the accreditation of schools. Educ. Code, SS R.01, R.26.

You first ask if the 1977 rules, designated in the Texas Register as Rule 226.37.15 a&denominated “Rinciples, Standards end Procedures for Accredi- - 1977,” conflict with section 13.032(c) of the tation of School Districts Education Code.

Section 13.032(c) specifies that in developing standards for programs in teacher education, the State Board of Education may not require an institution to teach a particular doctrine or to conduct instruction in accordance with any pedagogical method. In our opinion, the provision concerns only the authority ~of the board ~with respect to-~colleges. and universities offering programs of teacher education and does not relate to the authority the board respecting school districts for participation in the Foundation .Schod-Fund.-Gee.-Attorney-~~~ Qpinion- - H-197 (1974). You also ask if the 1977 rules are in conflict with section 23.26(b) of the Education Code, which reads:

The trustees [of an independent school district] shall have the exclusive power to manage and govern the free schools omict.

P- 5170 *2 (H-1314) - Page 2 (Emphasis added). TIN corollary of this provision is section ll.SS(a)(S), which states whh respect to the State Department of Kducatiom seek to assist looal school districts in developing

utl shall... effective and improved pqrams of education through re- search and exuerimentation. consultation, conferences, and evaluation, but-shall have & power over local school districts except those specifically granted by statute.

(Emphasis added).

lbe 1977 accreditation rulea set out specific standarda to which school districts must conform to be .accredited by the Central Kducation Agency for participation in the FouudationschoolFund.

We do not b&eve sect&n 23:26(b) can be read in isoktion from other provisions the law. Referring to ita similarly w&&d predecessor, the Amarillo Court Appeals said in Anderson v. Canyon Ind. Sch. Dist., 432 S.W.2d 387 (Tex. Civ. App. - AmsriKo l967, no writ), %E provlsiana of this statute must be considered in the li#t of other statutes to determfne the authority of the trustees to. enact a partkulsr rule or regulatio~~~ No s&tool district k? statutorily compelled to’ seek accredita-&-& failure to gain t3cweditation forfeits financial tapport from the &bmd&on see univeraitv Interscliolastic liaamt e v. Midwestern Universi@ 255 S.W.2d 177 (Tex. i353); met &Pub’hinR’& Attarney General O&ica V-388 uS4g See also &ok V. Jtkkaon, iO? S.W.2d 160 (Tex. 1937), ~reversin2 82 BW.2dl54.

‘Additionally SeaMe Concurrent Reaoluti~ No. 30 of the re@tir session of the 65th Legialeture eommamkd the State K&d of &Ncation to revise its accreditation’standard torequireofachool~ictsthatrrtudentpoficiencyinbasic~beaasessedand,it

riecemq, rem&@. Tlte-l977.rulea adopted by the board ‘were designed to aecoioplisb tJat task. .This resolution reflet$a the polioy of the state in one of the modes prescrkd by the Texas Constitution. .TerreK v. K@, 14 S.W.2d 786 (Tex. 1929). :

~Accordi&ly it fs our view that the courts of this state would eon&de that the 1977 akreditation rules do not usurp the authority of. local school boards or conflict with section lL63 of the Kducation Code.

Your third inquiry asks if the 1977 h&s are void for vagueness. Admibtrative regulations ere tested by the same principles of construction as statutes, and .a~ unconstitutionally vague only when a required course of conduct is stated in terms 80 int- vague mat pgsons of dnar~ cannot be sll~e 0f what i.3 ~hd~a51t.f~ when there is a substantial risk of miscalculation by those whose acts are subject to A. m wfina (26 v. state, 6412.W.Bd 639 (Tex. Civ. App. - Dallas

.p. 5171 *3 - Page 3 (H-1314)

The 1977 accreditation rules, as subsequently amended, consist of (l) a statement regarding the statutory basis for accreditation, (2)a general position statement, (3) conditions and procedures for accreditation, (4) principles and standards, and (5) an appendix of additional accreditation regulations, including a description of the accredita- tion planning process. All except the’ fourth &&gory above, that is, “principles and standards,” are presented in relatively straightforward and easy-to-understand language.

We cannot say that material in tha “principles and standardsn section of the 1977 rules is ao vague as to be invalid aa a matter of law, although jargon used in the educational field is often employed. Regulations are presumed valid and the burden of showing otherwise is on the party asserting invalidity. When a term used has a peculii or technical meaning as applied to some art, science, or trade, courts look to the particular art, rience or trade from which it Is taken in order to ascertain its meaning, and the ‘testimony of expert witnesses may be uaed to clarify such terms. Lloyd A. Fry Roofmg Co. v. State, s?lpra

We cannot aaaume that the language of the 1977 accreditation rulea,.when read in its qntirety, preaenta a aubatantial risk of miscalculation by those educators whoae acts are subject to regulation.

In your last question you ask if the 1977 rules impose a required teaching ideology upon tea&era in violation of theii First Amendment right&

Senate Concurrent Resolution No. 30 of the 65th Legislature, a policy.directive in which both legislative houses joined, and which the governor approved, provides:

WHEREAS, The State Roard of Rducation haa adopted the following aa a state goal for public education: ‘In terms of .Ueir individual abiiity to achieve, each ah&M ahouldhave a knowledge of, tha traditionally accepted fundamentala, arch aa read& writii, end arithmetic in the early grades, accompanied by studies in higher mathematics, science, history, English, and other languages aathey progress through the lpper grades;’ and

WHEREAS, There is mounting public concern that the public achoola are graduating ‘en increaamg number of students who have not achieved thfa goal and who simply cannot read, write, or do basic arithmetic at a level high enough to be functionaRy competent in today’s society; and

WHEREAS, It is a personal tragedy for a atudent to spend 12 years in the public school system and to be unable to compete in employment and other opportunities after graduation because poor preparation; and

WHEREAS, Public confidence in and fiscal support for a public school system that fails to achieve its basic goals are difficult to maintain; now, therefore, be it

p. 5172. *4 - Page 4 (H-1314) RESOLVED by the Senate of the State of Texas, the House of Representatives concurrin2, That the State Roard of R&cation be and hereby is directed to revise its accreditation standards to ‘~require school districts to evaluate their educational ;vrofms in terms of the goals of public educationt and, ba it RFSOLVRD, That the State Board of Education revise its standards to require each school district to aasess the proficiency of its students in basic skills at designated grade levels and to formulate plans for remedial programs if necessary. S.C.R. 30, 1977 Tex. Gen. Laws, at 3192,3193.

The briefs submitted to us on this questionview it as one involving the academic freedom of teachers to choose the content of particular couraes or subjects in the taught schools, or to choose the method of teaching a particular course or subject, It is contended by some of the briefs that the concept of %ccountabilityn fs infmicable to the First Amendment rights of the academic community. &a

We do not believe the 1977 accreditation rules are facfally unconstitutional. Rast Hartford Rducation A&n v. Board of Education, 562 F.2d 838,857, n.5 (2nd Cir. 1Sm ‘(en bane).

fn our opinfon the 1977 accreditation rules do not fmpose a required teachtng ideology upon teachers. in violation their First Amendment rig+. See Adams v. Cam&all Countv School Dist. Sll F.2d 1242 (lOth Cir. 1975); Presidents Cou mefLDfst. 25 v. Community School Board 25, 457 F.2d 289 (2nd Cm d. 372); Ahem v. hard 456 P.2d 399 (8th Cir. 1972); Mafiloux v. Kfley, 323 F. Supp. 1587 ( D. Mass., Bducatim, aff’d. 448 F.2d l242,(lst Cfr. 1971); Goldstein, The Asserted Constitutional Right of Public School Teachers to Determfne What They Teal

1293976).

SUMMARY 1977 principles, standards, and procedures the The for accreditation of school districts adopted by the State Roard of Jklucaticn do not conflict with particular provisions ~of the Texas Rducation Code, are not unconstitutionally vague, and do not facially violate First Amendment rights of teachers.

Attorney General of Texas p. 5173 *5 - Page 5 (Ii-1314)

APPROVED:

m

C.

Opinion Committee

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